CHE Appellant v Commissioner of Police

[2023] QDC 265

[2023] QDC 265

DISTRICT COURT OF QUEENSLAND

KENT KC DCJ

Indictment No 2096 of 2023

CHE  Appellant

v

COMMISSIONER OF POLICE  Respondent

BRISBANE

MONDAY, 31 MARCH 2023

JUDGMENT

HIS HONOUR: In this matter, CHE appeals against his conviction of the offence of contravening a domestic violence order, which occurred in the Magistrates Court on the 6^th of July 2023.  He was fined $500 and no conviction was recorded.  The particulars of the offence were that he had inappropriately and forcefully grabbed the arm of his daughter, causing bruising.  I think I am correct in saying that the relevant events unfolded in 2021, so a couple of years before the trial process, or before the trial process concluded, at least.  I think I am also right in saying, given that the record contains evidence of the complainant’s date of birth, that she might have been around 14 at the time that this happened.

The trial was conducted on behalf of CHE by his then legal representative, Mr Siganto, who was at that time working at Legal Aid Queensland.  The issue upon which the trial was fought was the potential defence of reasonable domestic discipline under the Criminal Code.  The factual matrix more broadly is, as I understand it, that the complainant and her siblings were visiting CHE, presumably for contact purposes and possibly consistent with Family Court orders.  I am not sure.  The material does demonstrate that there had been litigation between the parties in the Family Court, and it seems from submissions before me today there were at least some form of orders of the Family Court in existence at the relevant time.

What the complainant said was that on arriving at CHE’s house, shortly thereafter he began demanding she produce her mobile phone, possibly with an interest in seeing photographs that were on it, and according to the tenor of the evidence from the complainant and others, these kind of demands were not unusual.  To forestall such a demand, it seems the complainant had made a pre-emptive decision not to bring her phone with her, and she told that to CHE.  He seems to have been annoyed and emptied the contents of her bag, I think described at one stage as a handbag, and there was no phone for her to produce.

On the tenor of the evidence in the prosecution case, CHE was annoyed and grabbed his daughter’s arm, pulling her upright and then pushing her down a corridor and into another bedroom, including on the way, it seems, slamming her against a wall, on her version.  He let her out after an hour.  The next day she had a large bruise on her arm from the interaction.  Her evidence was she had not pushed her father or done anything else to commence this misbehaviour.  She did admit to being angry when he had tipped her bag out.  Her siblings saw her grabbed very hard and said that CHE was annoyed, and a third, I think, child gave evidence to similar effect and described some resistance at some stage by the complainant.

On this set of facts, although domestic discipline was raised and pursued, the conclusion of the magistrate was that such a defence was not made out or, perhaps more technically correctly, did not give rise to a reasonable doubt, because essentially on the uncontested versions of the evidence, the complainant child had not done anything to require discipline. All she had done was visit CHE’s house without her phone. Thus, in response to this appeal, which includes the ground of unreasonable verdict, the respondent Commissioner of Police argues that the Magistrate’s verdict was clearly open on the facts and in no way unreasonable, and there is no identifiable error in the reasoning process, consistent with the authorities setting the standard for a hearing of a section 222 appeal.

They are broadly, just to summarise, to the effect that legal, factual or discretionary error must be identified, and, as the respondent also raises, caution must be exercised to pay due regard to the Magistrate’s advantage in seeing and hearing the witnesses and give the Magistrate’s view appropriate weight.  In that exercise, of course, as determined by the Magistrate, the complainant’s evidence was uncontradicted and supported by the evidence of her brother and the medical evidence.  It was common ground that a doctor examined her the following day and found a large bruise on her arm.  Photographs of the bruising were tendered.

What, therefore, the respondent argues is that the Magistrate’s reasons were comprehensive and factually and legally correct.  For example, the Magistrate set out an appropriate legal framework, including her having regard to the entirety of the evidence, the fact that the prosecution bore the onus of proof, and she mentioned the correct standard.  She referred to the particulars and the elements of the offence.  In her conclusion, understandably, the relevant facts or the essential facts were not really in issue.  She identified the issue to be determined.  She canvassed the evidence of the complainant and the other two lay witnesses, which I have mentioned.  She made findings about the credibility and reliability of the Crown witnesses, and she went through the elements of the defence of domestic discipline and how that might apply to the facts.  As the respondent outlines in paragraph 6.3, the act of pulling the complainant up by the arm, causing the bruise, was not done by way of correction, discipline, management or control of the complainant, KNB, in that there was no conduct by her that warranted any such action.  Rather, it was in retaliation for or frustration at the fact that she, first of all, had not brought her mobile phone and then had reasonably refused to pick up her belongings that he had unreasonably tipped out.  Her Honour said that the defendant was angry and acted in anger, not in any act of discipline.  Further, she reasoned that it was irrelevant, really, whether he told her to go to the room.  There was no misbehaviour or conduct to discipline, and all of what followed was angry or retaliatory conduct.  KNB had only indicated that she had not brought her phone, telling the truth, and it was the appellant’s actions after that that escalated the situation.  KNB reacted to the defendant’s frustration in anger in a not unreasonable way.

The respondent points out one of the appellate authorities from the High Court, DeVries v Australian National Railways Commission, as to the problematic nature of the exercise of an appellate court overturning findings of fact of that kind based on credibility of witnesses whom the trial judge saw and heard but the appellate court has not.  As the High Court said, where there is a dependence to a substantial degree on the credibility of a witness, the finding must stand unless it can be shown that the trial judge has failed to use or palpably misused his or her advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.  Reference is also made by the respondent to similar expressions of the principle in Fox v Percy.  So, as I say, the respondent submits on the basis of the identified ground of appeal that the verdict was reasonable, supported the evidence, and according to law.  There was no failure to use the Magistrate’s advantages, and she did not act on evidence that was glaringly improbable.  Her findings were consistent with the way that the evidence which she heard in the trial.  My conclusion is that the ground of appeal in the notice of appeal is not made out.  The challenge to the Magistrate’s verdict as being unreasonable fails.

I pass on to the other, which is the primary issue in this appeal, and it is, in essence, that CHE’s trial on this charge was unfair because of conduct of his legal representative.  I do note that that new ground of appeal has been added today, and that is because, although he raised it in material filed some time ago, CHE did not realise and thus had not applied to add what is now his second ground of appeal until today.  Mr McNee for the respondent sensibly did not resist the formulation of and adding of the new ground of appeal.

However, there is some peripheral commentary about it in the respondent’s outline in paragraph 6.10.  It is pointed out in relation to the appellant not giving evidence at his trial, the acts constituting the offence itself were accepted.  A forensic decision was seemingly made not to give or call evidence, and the triable issue was thus narrowed to the application or otherwise of the defence of domestic discipline pursuant to section 280 of the Criminal Code.  I mention that observation about the forensic decision not to give or call evidence because that is what the appeal has largely been argued upon today.

The new ground of appeal added by leave is that CHE asserts that his trial was unfair because of his legal representation because his representative, Mr Siganto, promised him that he had an avenue of appeal and fresh trial, should he be unsuccessful in acquittal.  Because of this promise, he agreed to Mr Siganto’s advice to not give or call evidence.

After discussions with CHE during submissions, my conclusion is that I should understand that ground of appeal in terms that a promise by Mr Siganto was that he would get a fresh trial should he be unsuccessful in acquittal.  I am far from persuaded that that is the only correct reading of that formulation of words, which comes from his two-page statement, Exhibit A, which was exhibited to an affidavit in October last year.  Another reading of it would be that Mr Siganto had promised merely an avenue of appeal, one possible outcome of which, if successful, could possibly be a fresh trial.  CHE tells me from the bar table that his understanding was it was a promise of a fresh trial.

Assuming that for the purpose of argument, if made out, that could, in CHE’s submission, gives rise to the trial being unfair because it was on the basis of that legally incorrect promise that he agreed with Mr Siganto’s advice to not give or call evidence.  I also note that the argument today mentioned another aspect of that decision, in that CHE raised from the bar table the possibility of his solicitor tendering an order of the Family Court without CHE giving evidence, that is, assuming that it was possible in one way or another to get such a document into evidence, which may have been possible, CHE would then not have been exposed to cross-examination in the trial.  This concern is consistent with CHE’s broader concerns, namely, that he wanted to have the trial conducted on the basis of a much broader factual matrix going into the merits of, as I understand it, some of the arguments between CHE and his ex-partner or the mother of the children in the Family Court and the various merits of various aspects of those matters.

Assuming, as I do, in CHE’s favour that the meaning attributed by him to Mr Siganto’s alleged words that there could, in the context of the syntax, have been a promise of a fresh trial, it is therefore necessary to conduct a fact-finding exercise on the appeal.  Early in the hearing of the appeal, having being informed of the nature of the now new ground of appeal and, as CHE says, the earlier references to it in the earlier affidavit material, I reached a conclusion after hearing submissions that CHE had waived privilege in relation to his conversations with Mr Siganto, and thus the factual aspects of the instruction-taking process could be exposed.  This is in the context that having been alerted to this issue, the prosecution had subpoenaed Mr Siganto and the relevant documents from Legal Aid Queensland.  A bundle of documents was produced by a Legal Aid representative, which relate to these issues and which collectively were marked Exhibit 1 on the appeal.

Mr Siganto gave evidence. He properly and fairly conceded that he did mention to CHE that in the context of CHE accepting his advice as to the proper way to conduct the trial, CHE’s rights on appeal were preserved, that is, it was possible to file and conduct an appeal of this kind under section 222 of the Justices Act and, indeed, on such an appeal a new legal representative could raise a ground of criticism of Mr Siganto’s conduct of the trial. So much is common ground. What is not common ground and what Mr Siganto firmly rejected was any idea that he promised a fresh trial. His initial view, in fact, was that that was not legally possible, but I think he did retreat slightly from that position. Certainly, it is correct to say that the remittal of matters to the Magistrates Court after successful section 222 appeals, whilst it does occur, is not a common occurrence in the hearing of these appeals. That is part of the nature of these appeals under section 222, that they are appeals by way of rehearing on the record, subject to fresh evidence of the kind that is in this appeal and those legal frameworks make it much less necessary for matters to go back to the lower court for a retrial. So it is clear enough that Mr Siganto firmly rejected the idea he had promised a fresh trial.

CHE says from the bar table that he did and there is also some evidence of it, although CHE has not given evidence or sought to give evidence on this appeal.  What he has done is previously prepare, swear and file the affidavit from October last year which exhibits his two-page statement making these assertions.  That seems to me to probably come into the category of sworn evidence to that effect.

In resolving this factual issue, which is central to the merits of the appeal, it is not quite clear to me who bears the onus of proof and the requisite standard.  It may well be that the analysis depends on the broader rubric of, as is generally and often applied in legal proceedings, he who asserts must prove.  That is why the burden is on the plaintiff in civil actions and on the prosecution in criminal cases.  CHE is asserting this fact, namely, the promise about a fresh trial, which was not previously the subject of evidence in the proceedings.  Nonetheless, it seems appropriate to me to take a more cautious approach, and, the new ground of appeal having been agitated, its merits should be considered in the normal way, as would occur with any other factual issue.  It remains the obligation of the appellant to identify and, indeed, establish, it seems to me, a legal, factual or discretionary error.

If Mr Siganto had promised a new trial in the course of taking instructions from CHE, that would amount to a legal error, not one made by the court but one made by his legal representative.  That issue having been raised by CHE.  I am content to proceed on the basis, which I do not think is resisted by Mr McNee, that it is incumbent on the respondent to introduce evidence and establish that the relevant legal ground of appeal is not made out.  In that sense, the respondent can and does rely on the evidence of Mr Siganto and says, in effect, that there is no reason to conclude otherwise than in accordance with his evidence.  In my view, that submission should be accepted, that is, I do conclude that there was no promise of a fresh trial.

The reasons for making such a finding in acceptance of Mr Siganto’s evidence include the contents of Exhibit 1, which is the bundle of documents admitted as fresh evidence on the appeal because of the late introduction of the new ground of appeal.  That bundle of documents includes two written and signed sets of instructions by CHE to Mr Siganto of the 12^th of December 2022, the day of the pre-recording of the child witnesses in the hearing.  In particular, paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the five-page document thoroughly canvass the issue of giving or calling evidence, and, for what appear to be reasonable reasons, many of which are explicitly or implicitly included in the document, the decision was made by CHE freely but after legal advice to not give or call evidence.  The other shorter document was instructions signed on the same day abandoning a previous consideration of attempting to resolve or act upon what was said to be a conflict of interest because his estranged brother had a connection with another Legal Aid employee.  That second set of instructions is an interesting side note but has not assumed any particular importance on the hearing of the appeal.

So the difficulty for CHE on the conclusion of this appeal is that it turns upon an acceptance of the idea that Mr Siganto, in the context of the trial, promised him a fresh trial should he be unsuccessful in securing an acquittal.  That proposition was roundly rejected by Mr Siganto and is inconsistent with the contemporaneous written, signed instructions given to Mr Siganto at the time of the hearing of the trial.  There is some evidence, as I say, of CHE’s assertion.  The two things that I observe about that are that the construction placed by CHE on the words allegedly said do not necessarily follow, but in any event, the preponderance of the evidence negatives the idea that a fresh trial was mentioned in the relevant discussions.  That involves an acceptance of the evidence of Mr Siganto, which is made easier because of the contemporaneous written document confirming CHE’s instructions on a reasonable basis to not give or call evidence.  In that context, the emergence of a verbal promise of a fresh trial should he be unsuccessful in securing an acquittal is wholly unlikely, and it is denied on oath by Mr Siganto, whose evidence I accept.

The advice that it is common ground Mr Siganto did give is that if – sorry I pause to note that both Mr Siganto and CHE agree that the issue of how to tactically conduct the trial was contentious between them which is why Mr Siganto was so careful and precise in obtaining signed written instructions as to the way in which the trial would be presented.  In that context, Mr Siganto does not deny saying to CHE, as I have previously noted, that if found guilty, CHE had rights of appeal, and those rights of appeal included a new legal representative possibly criticising Mr Siganto’s tactical decisions.  So much is common ground.  But that advice is perfectly proper and not legally incorrect.  It is only this second aspect of an alleged promise of a fresh trial which is in issue today.

My finding is that there was no such promise of a fresh trial, and thus this did not inappropriately bear on CHE’s otherwise free decision not to give or call evidence.  It is impossible at this distance to resolve the admissibility or otherwise of any particular Family Court order which has not been identified, nor is it possible to assess the impact of such a document, if admitted, upon the merits of the trial.  All that can be said is that is quite unclear at the moment and inconsistent with the contemporaneous signed written instructions.  The result at the end of the day is that neither of the grounds of appeal are made out, and the appeal is dismissed.